Barzey v R

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Gordon, C.J.
• Judgment Date: 05 May 1970
• Neutral Citation: MS 1970 CA 1
• Docket Number: Criminal Appeal No. 1 of 1970
• Date: 05 May 1970

Barzey

and

R

Gordon, C.J. (Acting) Lewis, J.A.St. Bernard, J.A.(Acting)

Criminal Appeal No. 1 of 1970

Court of Appeal

May 5, 1970 - Appeal against conviction — Larceny

Held: The evidence indicated that while there was no evidence of breaking, there was evidence of theft from the dwelling house. The judge's directions were correct and the jury were entitled to find the appellant guilty of theft on the evidence. Appeal dismissed.

Facts: The appellant was charged with breaking and entering a dwelling house and stealing $62 contrary to section 28(a) of the Larceny Act, Cap.41. The issues were whether a conviction was wrong on the evidence and whether the trial judge had misdirected the jury.

1 Gordon, C.J. (Ag.): On the 3 ^rd of March, 1970 the appellant in this case was convicted of larceny from a dwelling house and sentenced to 12 months imprisonment with hard labour. He was before the court on a two-count indictment, (i) for breaking and entering to a dwelling house and stealing therefrom $62 contrary to sec. 28(a) of the Larceny Act, Cap. 41 Laws of Montserrat; (ii) for receiving stolen goods contrary to sec. 35 of the Larceny Act. The appellant has appealed against his conviction and it was urged before the court that the conviction for larceny from a dwelling house in the circumstances was wrong, and further that such a verdict as was returned, was on the direction of the learned trial judges That direction he submitted was a misdirection and as such merited the quashing of the conviction by the courts

2 The brief facts of the case were that, on the 22 ^nd of January a man. Montrose Werry, left his home after having secured it. On his return sometime later money was found to be missing from the home. A police officer gave evidence to the effect that there was no indication of any breaking. The appellant was brought in for questioning by the police. At the station having stated that he only had a few coins which he produced to the police, he was searched, and hidden in the lining of his hat the police fond -

two $20.00 E.C. notes one $20.00 U.S. “

one $10.00 U.S.

two $1.00 U.S.

3 In the course of further questioning he made a confession to the effect that he went into the house, which was open and took the money.

4 The trial judge in the c curse of his summing up warned the jury that there was no evidence of breaking, nor was there any evidence of receiving and suggested to them that in the circumstances the proper course would have been for them to have returned a verdict of guilty of larceny in a dwelling house.

5 Counsel for the appellant urged on the court that the learned trial judge could not in the...